United States v. Francisco Montes-Vargas

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10002
Plaintiff-Appellee, D.C. No. 2:10-cr-00708-FJM-3
v. MEMORANDUM*
FRANCISCO MONTES-VARGAS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted February 13, 2017
San Francisco, California
Before: CANBY, SILER**, and HURWITZ, Circuit Judges.
Francisco Montes-Vargas appeals his conviction and sentence on two drug
charges. We affirm the conviction, but vacate the sentence and remand for
resentencing.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the
Sixth Circuit, sitting by designation.
1. We review Montes-Vargas’s objections to Agent Nack’s testimony for
plain error because Montes-Vargas failed to object to any of the challenged
testimony below. United States v. Lopez-Martinez, 543 F.3d 509, 514 n.2 (9th Cir.
2008) (citing United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996)).
2. Assuming without deciding that an error occurred, Montes-Vargas
cannot prove that it “seriously affect[ed] the fairness, integrity, or public reputation
of [the] judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 (2002).
Montes-Vargas’s defense was based solely on the identity of the drug dealer
“Pastas.” Agent Nack’s testimony interpreting telephone conversations between
Montes-Vargas and his wife did not provide evidence that Montes-Vargas was
indeed “Pastas.” Montes-Vargas’s mistaken-identity defense was countered through
eyewitness identification testimony of two surveillance agents, voice identification
made by two other witnesses, and Montes-Vargas’s statements during jail calls. See,
e.g., United States v. Freeman, 498 F.3d 893, 905–06 (9th Cir. 2007) (holding any
error harmless because the agent’s testimony was adequately corroborated by other
trial evidence).
3. An instruction explaining Agent Nack’s dual role as both an expert and
a lay witness was not required because there was a clear demarcation between the
testimonies. See Freeman, 498 F.3d at 904 (“demarcation between lay and expert
testimony” may “be revealed through direct or cross examination”).
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4. The Government admits that the Presentence Investigation Report
incorrectly attributed 30 pounds of methamphetamine to Montes-Vargas when the
parties stipulated to 24.5 pounds, which caused the district court to calculate a higher
Guidelines range than it would have with the correct information. This “mistake in
calculating the recommended Guidelines sentencing range is a significant procedural
error that requires us to remand for resentencing.” United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011); see also Molina-Martinez v. United
States, 136 S. Ct. 1338, 1345 (2016) (“When a defendant is sentenced under an
incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the error.”). We remand
on an open record, and decline to consider in the first instance whether the district
court should consider the drugs recovered in a January 2010 seizure in resentencing
Montes-Vargas. See Williams v. United States, 503 U.S. 193, 205 (1992) (“[I]t is
the prerogative of the district court, not the court of appeals, to determine, in the first
instance, the sentence that should be imposed in light of certain factors properly
considered under the Guidelines.”).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
FOR RESENTENCING.
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